Media lawyer Jack Jones shares key advice for brands and creators following ASA’s Grace Beverley ruling

Posted by Dina Zubi in News

4 weeks ago

The Advertising Standards Authority (ASA) published a much-discussed ruling on 22 May, banning six of creator and entrepreneur Grace Beverley’s 2023 social media posts about her brand TALA. Miles Lockwood, the ASA’s director of complaints and investigations, called the ruling “precedent setting”. CORQ spoke to Jack Jones, a partner in the digital media and interactive group at law firm Sheridans, about the lessons brands, agencies and creators can take from the ruling.

The ASA is the UK’s regulator for advertising and it applies the ad codes, which are written by the Committee of Advertising Practice (CAP). Its ruling against Beverley determined that her posts were not obviously identifiable as marketing communication, following 51 complaints it had received about the influencer’s content where she discussed the brand and its products but did not specify it was her own company or mark it as an ad. The case has sparked a debate around what is “obviously identifiable” and how to label content about your own company or workplace.

Jones says: “The main precedent set is that the ASA and CAP are setting quite a high bar on content for influencers and whether that amounts to an obviously identifiable ad.” This poses questions around what qualifies as an influencer – there is no firm legal definition of the word – and who should label content about their brand or employer as #ad. “[The ASA] are taking a much more active role in enforcement, particularly when it comes to influencer content,” Jones points out.

Beverley and TALA argued that the founder is synonymous with her brands (she also owns fitness app Shreddy and planner brand The Productivity Method) and that her TikTok and Instagram bios state she is the founder of these companies. The ASA found this insufficient, as her content will be visible in the feeds of users who don’t follow her, and viewing the bio description requires actively clicking on her profile.

“Having a negative ruling can have a pretty negative impact on your business going forward,” Jones says. While there is no financial penalty, the PR damage from an ASA ruling can be severe. The case against Beverley and TALA was covered by the BBC, Marketing Week, Campaign and The Tab, as well as countless LinkedIn posts, TikToks and Instagram comments.

“It appears that the ASA are defaulting to what they’ve always done, which is [requiring] this #ad, which doesn’t necessarily work well under certain circumstances – actually, I would go further to say it can be quite misleading,” Jones says. #Ad was designed to be a clear way to label paid partnerships with a third-party brand, but now it has evolved to being used in other promotional capacities, which can be confusing. Jones agrees with a large portion of the creator community, who are calling for clearer guidelines on what makes an ad “obviously identifiable”.

“It’s clear that the ASA and CAP have focused in on influencers with larger followings, the bigger players, and I suspect that’s to set an example,” Jones says. He points out that LinkedIn is a platform where most of the content is about users’ companies and employers, yet there seems to be few posts marked as #ad. A key difference between LinkedIn and other platforms such as TikTok and Instagram, is that the audience on the former is better equipped to detect commercial content, which Jones suspects is part of the reason content on this platform is not brought to the ASA.

His most crucial advice for brands, agencies or creators facing an ASA investigation? Co-operate and amend the content if possible, as this can result in the complaint being informally resolved. These cases are posted in a separate tab on the ASA website, with only the company name and number of complaints being published. In contrast, rulings contain lengthy, detailed explanation and analysis of the complaint and verdict.

Brands should draw up influencer contracts that include appropriate warranties, obligations and indemnities to ensure the creator or agency will comply with the applicable laws and regulations. “Fundamentally, you want to have that legal protection in place from the outset,” Jones points out.

To follow ASA guidelines, creators and entrepreneurs should make their relationship with a company clear from the beginning of a piece of content. The ASA also takes into account whether your brand or product is the focus of the content, which was part of the March 2023 ruling against cleaning and lifestyle creator Sophie Hinchliffe. If in doubt, the ASA favours the #ad label for posts with a commercial angle.

“Do I need to put #ad on everything? The answer is no, but you need to think about who you may influence, what you’re saying and how you’re saying it, and whether that amounts to an ad,” Jones says.

By Dina Zubi, CORQ news and features writer. Picture credit: Jack Jones and Grace Beverley